Death is different: the need for jury unanimity in death penalty cases.

• Author: Cantero, Raoul G.

1. Introduction II. Unlike All Other States, Florida Allows a Simple Majority of the Jury to Find the Prosecution Proved an Aggravating Circumstance III. Capital Sentencing Schemes Across the Nation Require Jury Unanimity Before a Defendant Can Be Sentenced to Death IV. Allowing a Simple Majority of a Jury to Decide Whether the Prosecution Proved an Aggravating Circumstance May Be Unconstitutional A. Death is Different B. Florida's Capital Sentencing Scheme May Violate the Eighth Amendment C. Florida's Capital Sentencing Scheme May Also Violate the Sixth and Fourteenth Amendments D. No Substantive Difference Exists Between a Jury Verdict at Trial and a Jury's Determination of Aggravating Circumstances at a Separate Sentencing Proceeding V. The Florida Legislature Must Revisit the State's Capital Sentencing Scheme A. The History of Unanimous Verdicts B. Despite a Trend Away from Unanimous Verdicts, Several Policy Arguments Support the Need for Unanimous Verdicts VI. Conclusion I. INTRODUCTION

   In 1972, the Supreme Court of the United States abolished the death penalty in the United States. (3) In siding with the majority, Justice Brennan wrote that "[d]eath is a unique punishment." (4) Since then, justices have repeated the maxim that "death is different." (5) Indeed, the utter irreversibility of execution sets death apart from all other punishments. (6) A death sentence represents the jury's--and by extension the community's--judgment that the defendant has forfeited the right to live. (7)

   The Supreme Court has held that death penalty cases require extensive procedural safeguards. (8) Such safeguards ensure that only defendants found guilty of the most grievous crimes receive the death penalty. (9) Those safeguards must pervade all aspects of a death penalty case, from trial to appellate review. (10)

   Procedural safeguards must regulate not only the judge's role, but the jury's as well. (11) By design, juries play a major role in death penalty cases. (12) They decide not only whether the defendant is guilty of a capital offense, but also whether the facts surrounding that offense are so atrocious that the defendant deserves to die. (13)

   In light of the jury's significant role, all death penalty jurisdictions have a two-phase proceeding. (14) In the first phase--the trial phase--the jury must determine whether the defendant is guilty of a capital crime. (15) If the jury finds the defendant guilty, the same jury then participates in the second phase--the penalty phase--in which it determines whether the defendant's crime deserves the death penalty. (16)

   Before the defendant may be sentenced to death, the prosecution must prove that one or more statutory aggravating circumstances apply. (17) Aggravating circumstances, such as murders involving torture or those committed for pecuniary gain, are thought to make a defendant more deserving of the death penalty. (18) After the prosecution's presentation of aggravating circumstances, the defendant may present evidence of mitigating factors. (19) Such circumstances, which may include a defendant's age, a childhood involving abuse, or a mental defect, may mitigate the heinous nature of the crime and make the defendant less deserving of the death penalty. (20) If the jury believes the prosecution proved the existence of one or more aggravating circumstances, the jury must then weigh the aggravating circumstances against any mitigating factor. (21)

   The jury's considerations of the existence of aggravating circumstances, the existence of mitigating factors, and the relative weight of those factors, determines whether the defendant should receive the death penalty. (22) Whether the defendant should receive the severe and irrevocable penalty of death is a grave decision. Therefore, before allowing the court to impose the ultimate penalty, virtually all jurisdictions that authorize the death penalty require juries to make certain decisions unanimously. (23) Indeed, for more than six hundred years, a unanimous jury verdict has "stood as a distinctive and defining feature of jury trials." (24)

   Florida requires jury unanimity in virtually all criminal trials. (25) The only exception is death. (26) In this sense, the maxim that "death is different" takes on ironic tones. In Florida, once the defendant is found guilty of a capital crime, the jury, after considering the aggravating and mitigating factors, recommends the sentence to the judge. (27) The judge, however, ultimately imposes the sentence. (28) Florida stands alone among thirty-five states in allowing a simple majority of the jury both to decide whether the prosecution proved an aggravating circumstance and to recommend a sentence of death. (29) Both legal and policy grounds suggest that more than a simple majority should be required. (30) Florida should change its capital sentencing scheme to require that a jury unanimously find an aggravator.

   Part II of this Article explores the contours of Florida's capital sentencing scheme and focuses on the portion of the Florida Statutes that authorizes a mere majority of the jury to determine the existence of an aggravator. Part III examines capital sentencing schemes across the country to determine whether Florida's scheme is typical of those in other States. Part IV then explores Supreme Court precedent on capital sentencing schemes to determine whether the United States Constitution requires a state to determine aggravators unanimously. Finally, in Part V, after exploring historical and policy reasons behind the requirement that only unanimous juries render verdicts, the authors recommend that the Florida Legislature revisit its death penalty statute to require unanimous juries find the prosecution proved an aggravator.

2. UNLIKE ALL OTHER STATES, FLORIDA ALLOWS A SIMPLE MAJORITY OF THE JURY TO FIND THE PROSECUTION PROVED AN AGGRAVATING CIRCUMSTANCE

   Florida, like all other states that have retained the death penalty, (31) divides capital cases into two distinct stages. (32) At the first stage, the jury hears evidence and decides whether the defendant is guilty of the crime charged. (33) To proceed to the second stage, the jury must unanimously find the defendant guilty of first-degree murder. (34) If it does, the same jury then hears evidence to decide whether statutory aggravating circumstances exist, and if they do, whether statutory, as well as non-statutory, mitigating circumstances exist that override the aggravating circumstances. (35) This second stage, labeled a "separate sentencing proceeding," (36) is essentially another trial. Although the prosecution need not list the aggravating circumstances in the indictment, (37) it must prove the aggravating circumstances beyond a reasonable doubt. (38) The defense, on the other hand, need only "reasonably convince[]" the jury about the existence of mitigating circumstances. (39)

   If the jury finds that the prosecution has proven beyond a reasonable doubt one or more aggravating circumstances, it must then determine whether those circumstances warrant recommending a death sentence. (40) Then, if the jury decides that they do, it must also decide whether mitigating circumstances outweigh the aggravating circumstances. (41) Based upon the totality of the circumstances, the jury then recommends whether the defendant should be sentenced to life imprisonment or death. (42)

   Florida's capital sentencing scheme is largely the same as those in other states, (43) except for one glaring flaw: Florida requires no more than a simple majority of the jury to find that one or more aggravating circumstances exist. (44) Thus, even if five out of twelve jurors (nearly 42%) believe the prosecution failed to prove, beyond a reasonable doubt, that an aggravating circumstance existed, the defendant may nevertheless receive the severe, irreversible penalty of death. (45) Perhaps even more surprising is that a simple majority need not agree on which aggravating circumstances apply. (46) The jury may still recommend a death sentence even if each juror believes a different aggravator was proven. (47) For example, one juror may believe that the murder was especially heinous, atrocious, or cruel; while another may believe that it was cold, calculated and premeditated, while yet another may believe that the murder was committed in the course of a felony, and each juror may disagree with the others as long as seven of them agrees that at least one aggravator--whichever it is--applies.

   With so much at stake, many scholars find it problematic that Florida's capital sentencing scheme allows juries to decide the existence of aggravators by a mere majority vote. (48) The following section explores capital sentencing schemes in other states to determine whether Florida's scheme is typical or aberrational.

3. CAPITAL SENTENCING SCHEMES ACROSS THE NATION REQUIRE JURY UNANIMITY BEFORE A DEFENDANT CAN BE SENTENCED TO DEATH

   In the United States, thirty-five states have retained the death penalty. (49) Thirty-four of those require that the jury unanimously agree on the existence of an aggravating circumstance. (50) Of those thirty-four, the vast majority--twenty-five--require by statute both that the jury unanimously agree on the existence of aggravators and that it unanimously recommend the death penalty. (51) Three others require by statute unanimity only as to the finding of aggravators. (52)

   Five more states have imposed, by case law, a requirement that the aggravators be determined unanimously. (53) Of those five states, two require both a unanimous jury finding of aggravators and a unanimous recommendation of death. (54) Missouri law, though less clear, appears to also mandate that a jury unanimously find the aggravators. (55)

   Federal law also has retained the death penalty. (56) Like the vast majority of the states, the federal death penalty statute requires a jury to find aggravators unanimously. (57) The federal death penalty statute also requires a...